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Case # G0609709
Date of Accident: 02/27/2013
District Office: Buffalo
Employer: Kaleida Health Inc
Carrier: American Zurich Insurance Co
Carrier ID No.: W036636
Carrier Case No.: 2440163068
Date of Filing of Decision: 11/28/2016
Claimant's Attorney: Collins & Collins, LLC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 18, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 3, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the disability from the claimant's low back injury can be apportioned between the work-related accident and a subsequent motor vehicle accident (MVA).

The Workers' Compensation Law Judge (WCLJ) apportioned lost wage benefits 75% to the workers' compensation claim and 25% to the MVA.

The Board Panel majority modified the WCLJ's decision and found that apportionment did not apply.

The dissenting Board Panel member would affirm the WCLJ decision.

The carrier filed an application for Mandatory Full Board Review July 1, 2016, arguing that liability for claimant's "overall disability" should be apportioned 50% to the work injury and 50% to the subsequent MVA.

The claimant argues in rebuttal that the opinion of the Board Panel's majority opinion should be adopted as the opinion of the Full Board.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This case is established for a work-related low back injury resulting from a February 27, 2013, accident.

The claimant had a laminectomy performed by Dr. Huckell on January 31, 2014, which was done on an emergency basis. The claimant was then involved in a non-work-related MVA on February 28, 2014. The carrier aggressively sought to have indemnity benefits for the low back injury apportioned to the MVA. The record on apportionment was developed by way of the testimony of Dr. Huckell and Dr. Calabrese, as well as submission of the medical reports of Dr. Ellingson, the carrier's medical examiner.

Claimant has undergone MRIs of his lumbar spine on July 31, 2013, and July 8, 2014.

Dr. Huckell, the claimant's orthopedic surgeon, was deposed on October 3, 2014, and testified that he performed a lumbar laminectomy on January 31, 2014. The claimant then had an MVA on February 28, 2014. Dr. Huckell reviewed and compared a lumbar MRI performed before the MVA (July 31, 2013, MRI) to one done after the MVA (July 8, 2014, MRI), and he testified that the later one showed the results of the surgery he performed, and it was what he would expect to see had the MVA never occurred. The doctor testified that he believed the claimant has been totally disabled since her surgery, which disability is due solely to the workers' compensation claim. The doctor testified that the MVA caused injuries to the thoracic spine.

On cross-examination, Dr. Huckell testified that he observed a minimal posterior disc bulge at L4-5, which he characterized as fairly minor pathology during the surgery. The doctor then admitted that he billed no fault for four office visits, including one in which the claimant reported low back pain after the MVA. The doctor explained that the MVA occurred during the early post-operative period and "stirred up her symptoms" (p. 12). The doctor testified that the MVA caused new injuries to the neck and thoracic spine. The doctor admitted that the thoracic spine may need surgery, and the injuries to the neck and thoracic spine make it more difficult for the claimant to function.

Dr. Calabrese, the claimant's treating doctor, was deposed on May 20, 2015, and testified that the claimant has been treating for low back pain with radiating numbness into her legs since March 12, 2013. The first time claimant was seen at his office after the surgery was on February 27, 2014. During that office visit, which was the day before the MVA, the doctor reported that the claimant could not return to work at that time. Dr. Calabrese testified that the MVA caused injuries to the neck, thoracic spine, shoulder, wrist, left knee and hip. During the March 27, 2014, office visit, the claimant was found to have a temporary total disability. Dr. Calabrese testified that the claimant was totally disabled before the MVA and continued to be totally disabled from the back after the MVA. The doctor testified that while he thinks an apportionment of 75% to the workers' compensation claim and 25% to the MVA would be reasonable, he defers to Dr. Huckell's opinion on this issue because he was the surgeon.

On cross-examination, Dr. Calabrese admitted that the March 18, 2014, office visit report showed the claimant complained of worse pain after the MVA, and she now has left leg pain, despite the right leg pain resolving after the surgery. The doctor admitted that the claimant complained of an aggravation of the low back pain during the office visit on April 9, 2015.

Dr. Ellingson examined the claimant for the carrier on June 6, 2014, prior to the post-MVA lumbar MRI performed on July 8, 2014. The doctor reported a history that included an MVA on February 28, 2014, in which the truck the claimant was driving was rear-ended. Dr. Ellingson concluded that 50% of claimant's disability comes from the MVA and 50% comes from the work-related low back injury because the MVA made her back pain worse and caused new injuries.

Dr. Huckell's February 26, 2014, report and Dr. Calabrese's February 27, 2014, indicate that claimant was totally disabled and could not return to work immediately prior to her MVA on February 28, 2014.

By a reserved decision filed July 13, 2015, the WCLJ found that "[a]pportionment applies as of date of this decision to indemnity only, 75% causally related 25% not causally related."

The carrier requested administrative review arguing that liability should be apportioned as of August 15, 2014, 50% to the work injury and 50% to the subsequent MVA.

In her rebuttal, claimant requested that the WCLJ's decision be affirmed.

LEGAL ANALYSIS

In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 [1997], lv denied 90 NY2d 808 [1997]; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 [2005]).

Here, the medical evidence shows that the claimant was totally disabled after her January 31, 2014, surgery. Dr. Huckell's February 26, 2014, report and Dr. Calabrese's February 27, 2014, report, which predate the MVA by no more than two days, both indicate that claimant was totally disabled. Dr. Huckell testified that claimant remained totally disabled from the work-related low back injury after the MVA.

Additionally, Dr. Huckell testified that he compared the MRIs that predated and postdated the MVA, and that the MRI findings after the MVA were consistent with the surgery he performed and were what he would expect to see had the MVA not occurred. Although Dr. Calabrese testified that apportioning claimant's disability 25% to the MVA was reasonable, he expressly deferred to Dr. Huckell's opinion on apportionment because he performed claimant's surgery. Dr. Ellingson's opinion is not persuasive because it overlooks the fact that the claimant was already totally disabled days before the MVA and because it was rendered prior to claimant's July 8, 2014, lumbar MRI.

Claimant's low back disability clearly predated the MVA, and the same disability continued after the MVA. The MVA did not aggravate the claimant's low back injury because the MRI's showed no new lumbar pathology after that event.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant's indemnity awards should not be apportioned.

CONCLUSION

ACCORDINGLY, the WCLJ's reserved decision filed July 13, 2015, is MODIFIED to rescind the finding of apportionment and to make awards fully attributable to the case for the February 27, 2013, work-related accident. No further action is planned by the Board at this time.